Becker v. Waterman SS Corporation
| Decision Date | 27 January 1950 |
| Docket Number | No. 130,Docket 21518.,130 |
| Citation | 179 F.2d 713 |
| Parties | BECKER v. WATERMAN S. S. CORPORATION. |
| Court | U.S. Court of Appeals — Second Circuit |
Gay & Behrens, New York City, for appellant. Edward J. Behrens, New York City, of counsel.
George J. Engleman, New York City, for appellee.
Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.
This is an action brought under the Jones Act, 46 U.S.C.A. § 688, by the chief officer of the S. S. Warrior against her owner to recover damages for injuries he sustained when he entered the port deep tank in No. 3 hold to supervise its cleaning. The jury returned a verdict of $30,000 in his favor. From the resulting judgment the defendant has appealed, assigning error in denying motions to dismiss and to direct a verdict in its favor as well as errors in the charge of the court. There is no substantial dispute as to the facts which the jury could have found from the evidence.
On its outbound voyage to Europe the vessel carried drums of soybean oil in the deep tanks in No. 3 hold. Some of the drums broke and the spilled oil drained into the rose box of each tank. At Bremen, Germany the plaintiff, accompanied by the first assistant engineer, inspected the tanks and found them clean except for the oil in the rose boxes. The assistant engineer promised to pump out this oil and the chief officer thereupon entered in the log that the tanks were Subsequent events justified the inference that the assistant engineer failed to fulfill his promise and that the plaintiff knew before he sustained his injuries that the oil had not been pumped out. On the return voyage the tanks were filled with water for ballast. After the ship left Boston, Mass., on the way to Searsport, Me., the master ordered that the water ballast be pumped out through the pipes in the bottom of the rose boxes. Shortly before the vessel anchored at Searsport on the morning of March 11, 1948, the chief officer was informed by the engineering department that suction had been lost in pumping out the deep tanks, and he was asked to look into the matter. He opened the manhole and with the aid of a flashlight saw about a foot of water in the after end of the tanks with "round blobs of stuff floating around." Several hours later after the vessel had been docked, the chief officer, accompanied by a deck maintenance seaman, entered the port deep tank through the manhole to determine what cleaning had to be done. The tank covers were still on and they lowered a cargo light consisting of three or four electric bulbs and a reflector through the manhole. The chief officer then descended the ladder to the "trunk" or ledge which is about five feet above the bottom of the tank. He took a step or two forward, his foot hit a blob of oil which he had not seen, he lost his balance and fell from the ledge into the tank, sustaining the injuries for which he has recovered judgment. It was the duty of the chief officer to see that the deep tanks were clean and fit for the receipt of cargo at Searsport.
The appellant contends that there can be no recovery on these facts because the chief officer was under a duty to correct a dangerous condition of which he had knowledge, and sustained his injuries by reason of the very condition he was employed to correct. The point was raised by motions at the conclusion of the evidence to dismiss the complaint and to direct a verdict for the defendant.
The cases relied upon are Byars v. Moore-McCormack Lines, 2 Cir., 155 F.2d 587 and Kowalsky v. Conreco Co., 264 N. Y. 125, 190 N.E. 206, 207. In the former case we held that where an independent contractor had...
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Dixon v. United States
...condition of the upper rungs, the shipowner could not have said that Dixon thereby assumed the risks involved. See Becker v. Waterman S. S. Corp., 2 Cir., 1950, 179 F.2d 713. A fortiori the respondent may not say that Dixon assumed the risk when at most he was only sketchily warned of the p......
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Caddy v. Texaco, Inc.
...N.E. 206, is entirely inapplicable since it involved injuries sustained by a workman making repairs on a building. In Becker v. Waterman S.S. Corp., 179 F.2d 713 (2d Cir.), the court noted that the basis of the Byars and Kowalsky cases was the doctrine of assumption of the risk, and said th......
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Dixon v. United States
...it would be an element to be considered in applying the rule of comparative negligence.4 Our own Court of Appeals in Becker v. Waterman S.S. Corp., 2 Cir., 179 F.2d 713, 714, was careful to limit the effect of the Byars case to the situation of a repairman of an independent contractor injur......
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Mormino v. Leon Hess, Inc.
...admitted that at no time had he ordered any one of them to clean up the oil. It was the deck crew's job to do this. Becker v. Waterman S. S. Corp., 2 Cir., 179 F.2d 713. Libelant intimates that the Mate's suggestion that he fix the valve at his own convenience excused his delay. I do not se......